United States v. Randy Meherg

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1860
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ANDY G. M EHERG,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 11-CR-46-wmc-01—William M. Conley, Chief Judge.
A RGUED O CTOBER 30, 2012—D ECIDED A PRIL 8, 2013
Before B AUER, F LAUM, and W OOD , Circuit Judges.
W OOD , Circuit Judge. The facts underlying Randy
Meherg’s conviction are not at issue. When Meherg
was arrested on an outstanding warrant, police discov-
ered that moments earlier he had been carrying a fire-
arm and ammunition. Meherg pleaded guilty to pos-
sessing a firearm after having previously been convicted
of a felony, in violation of 18 U.S.C. § 922(g)(1). The
Armed Career Criminal Act, 18 U.S.C. § 924(a) (ACCA)
2 No. 12-1860
defines an offender who has three earlier convictions
for qualifying crimes as a career criminal and prescribes
a mandatory minimum 15-year sentence for any such
person. Qualifying crimes include “serious drug of-
fenses”—manufacturing or delivering a controlled sen-
tence where the maximum punishment is greater than
ten years’ imprisonment—and “crimes of violence”—
crimes that either have as an element the use, attempted
use, or threatened use of force; or, as relevant here,
present a serious potential risk of physical injury.
18 U.S.C. §§ 922(e)(2)(A), 924(e).
The district court found that Meherg was a career
criminal because his record included two Illinois
state convictions for manufacture or delivery of 1-15
grams of cocaine (serious drug offenses because they
are punishable by up to 15 years’ imprisonment) and a
conviction for aggravated stalking. The latter offense,
the court found, has as an element the use or threatened
use of force and in addition presents a serious potential
risk of physical injury. The court imposed the man-
datory minimum of 180 months’ imprisonment as a
sentence, and Meherg now appeals.
I
We review de novo the district court’s determination
that Meherg qualifies for an armed career criminal en-
hancement under the ACCA. United States v. Sykes, 598
F.3d 334, 335 (7th Cir. 2010), aff’d, 131 S. Ct. 2267 (2011).
Meherg begins by attacking the district court’s reliance
on the determination in his presentencing report (PSR)
No. 12-1860 3
that he was convicted of two “serious drug offenses” in
1989. Meherg contends that the government failed
to establish that he was convicted of distributing be-
tween one and 15 grams of cocaine. He argues that two
discrepancies between his conviction records and the
applicable Illinois statute create doubt over the precise
nature of the crimes of conviction. First, he notes that
the conviction record refers to “Section 1401” of the
1985 Illinois Revised Statutes, “Chapter 56.5,” instead of
to “Paragraph 1401” of Chapter 56 ½. Second, the
record refers to Paragraph B(2) instead of to Section
401(b)(2). Thus, the conviction records state that Meherg
was convicted of violating “Chapter 56.5, Sec. 1401,
Para. B(2),” but the statute criminalizing delivery of 1-15
grams of cocaine at the time was actually “Chapter 56 ½,
Paragraph 1401, Section 401(b)(2)” of the Illinois Revised
Statutes. (See 720 ILCS § 570/401 for the current codifica-
tion of this law.)
A district court may rely on information contained in
a PSR so long as the report is well-supported and
appears reliable. United States v. Heckel, 570 F.3d 791,
795 (7th Cir. 2009); United States v. Mustread, 42 F.3d
1097, 1101-02 (7th Cir. 1994). A defendant may produce
evidence that questions the reliability or correctness of
the facts in the report, but he must offer more than a
“bare denial” of the information. Mustread, 42 F.3d at
1102. Only when the defendant creates “real doubt” does
the burden shift to the government to demonstrate
the accuracy of the information. United States v. Black,
636 F.3d 893, 897 (7th Cir. 2011), cert. denied, 132 S. Ct.
1600 (2012).
4 No. 12-1860
In Black we addressed a similar challenge to a career
offender determination. There, the defendant argued
that the “handwritten abbreviation indicating the charge
is impossible to decipher . . . [and] these documents
cast doubt upon the correctness of the charges in the
PSR.” Id. This was not enough, we held, to create a real
doubt about the accuracy of the PSR. Black never denied
that he was actually convicted of the crimes charged;
he argued only that it was possible that the conviction
record was inaccurate. Our comment there is equally
applicable here: “We see no reason for a defendant to
submit evidence that is indirect to the issue when
[the defendant] himself could have produced direct
evidence by simply stating that he was not convicted of
the crimes with which he was charged or that he was
actually convicted of a lesser offense.” Id.Like Black, Meherg does not argue that he was not
actually convicted of delivering or manufacturing 1-15
grams of cocaine. He merely states that, because the
conviction documents are unclear, it is possible that he
was convicted of a lesser offense. Meherg has not intro-
duced any evidence, such as a plea colloquy or sen-
tencing transcript, indicating that he was convicted of
a crime different from the one charged. This means that
the conviction records stand uncontradicted, and they
adequately document the fact that Meherg was
convicted of the crimes of delivering 1-15 grams of co-
caine. The first pages of the indictments state that he
is charged with “deliver[ing] controlled substance”;
the handwritten conviction documents refer to the
offense as “man/del” and include the notation “Ch. 56.5,
No. 12-1860 5
Sec. 1401, Par. B(2).” Chapter 56 ½, Paragraph 1401 is
entitled “Manufacture and delivery unauthorized by
Act—penalties,” and the first section under that para-
graph heading (Section 401) prohibits manufac-
turing and delivering a controlled substance. Subsec-
tion (b)(2) of Section 401 designates manufacture and
delivery of 1-15 grams of cocaine as a Class 1 felony. There
is no reason to infer that the court was referring to any
provision other than Chapter 56 ½, Paragraph 1401. It is
not as if the conviction documents referred to a section
and paragraph that defined a different crime. Even
though, as Meherg points out, there is no “Section” 1401
in Chapter 56-1/2 of the Illinois Revised Statutes, what
we have here is at most a scrivener’s error. Meherg
was obviously able to discern the offense to which his
conviction documents refer: he attached the correct statu-
tory provision to his brief in order to show us the dis-
crepancies.
The government also submitted a page, supposedly
from the indictment, that specifically charges Meherg
with delivering cocaine. Meherg argues that this
random paper cannot support the court’s conclusion,
both because it was not a part of his criminal conviction
record and because its authenticity is questionable, as
it does not contain a case or page number. Since
Meherg’s conviction records are sufficient to support
his ACCA enhancement, we need not, and do not, rely
in any way on the questionable document.
6 No. 12-1860
II
Meherg also challenges the district court’s conclu-
sion that aggravated stalking qualifies as a crime of
violence under the ACCA. For ACCA purposes, a crime
of violence “(i) has as an element the use, attempted use,
or threatened use of physical force against the person
of another; or (ii) is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of injury to another.” 18
U.S.C. § 924(e). The Illinois crime of stalking is com-
mitted when a person “knowingly and without lawful
justification . . . follows another person or places the
person under surveillance . . . and . . . places that person
in reasonable apprehension of immediate or future
bodily harm, sexual assault, confinement or restraint.”
720 ILCS § 5/12-7.3(a-3). The Illinois crime of ag-
gravated stalking is committed when a person commits
stalking and “confines or restrains the victim.” 720 ILCS
§ 5/12-7.4(a)(2). Meherg argues that aggravated stalking
neither meets the “elements” test of the statute nor
falls under the residual clause by presenting a serious
potential risk of physical injury.
We agree with Meherg on the first point. Indeed, the
government now concedes that the aggravated stalking
offense does not have as one of its elements the use of
force and that a person could violate the statute
without using force. For instance, the perpetrator could
coerce a victim to consent to taking a ride in a car,
thereby confining the victim without force. We find
this concession to be well taken, and thus move on to
consideration of the residual clause.
No. 12-1860 7
In deciding whether an offense qualifies as a crime
of violence under the residual clause, we look to the
manner in which the offense ordinarily is committed.
We assess whether the crime involves conduct that
creates a risk of physical injury that is “similar in risk to
the listed crimes.” Sykes, 131 S. Ct. at 2276; United States
v. Capler, 636 F.3d 321, 323 (7th Cir. 2011); United States
v. Sonnenberg, 628 F.3d 361, 364 (7th Cir. 2010). The ap-
proach is a categorical one: instead of looking to the
conduct involved in a particular case, we ask “whether
the elements of the offense ordinarily involve conduct
that falls within the scope of the residual clause.”
Capler, 636 F.3d at 327 (emphasis in original).
We already have concluded that the Illinois crime of
unlawful restraint (defined as “knowingly without
legal authority detain[ing] another”) is a crime of
violence, even though it does not specify whether
physical force must be used in detaining the victim. Id.;
United States v. Wallace, 326 F.3d 881 (7th Cir. 2003). We
also found Wisconsin’s false imprisonment offense to be
a crime of violence, even though the crime could be
committed through fraudulently obtained consent.
United States v. Billups, 536 F.3d 574, 579 (7th Cir. 2008).
We explained that “a situation where one person
restrains another against his or her will presents a
serious potential risk of physical injury, whether it be
in the initial restraint or the possible resulting confronta-
tion between assailant and victim if the victim attempts
to leave.” Wallace, 326 F.3d at 887 (internal quotation
marks omitted).
8 No. 12-1860
In both Wallace and Billups, we rejected the argument
that the crime should not qualify because one could
conceivably confine a victim without the risk of violent
conduct. Billups, 536 F.3d at 579. We explained that even
if a victim’s restraint is accomplished without violence,
risk of physical injury will likely arise from the victim’s
efforts to escape confinement. Id. at 580. We also empha-
sized that since “the ‘serious potential risk’ language . . . is
indicative of probability, rather than inevitability, . . . an
offense need not pose a serious risk of harm in every
conceivable factual manifestation in order to constitute
a crime of violence.” Id.; Wallace, 326 F.3d at 887 (“[T]he
benchmark should be the possibility of violent confronta-
tion, not whether one can postulate a nonconfronta-
tional hypothetical scenario.”).
Wallace and Billups compel us to reject Meherg’s argu-
ment that aggravated stalking is categorically not a
crime of violence because it does not require the victim’s
non-consent. (For instance, Meherg argues that one
might commit aggravated stalking by taking the victim
for a ride in a locked car that they voluntarily enter.)
In reaching this conclusion, we emphasize that we
are addressing aggravated stalking, not the ordinary
crime of stalking under Illinois law. Aggravated stalking
is ordinary stalking—placing the victim in fear of im-
mediate or future bodily harm, sexual assault, confine-
ment or restraint—plus actually confining or restraining
the victim. Therefore, the offense that Meherg com-
mitted requires not only that the victim fear confinement
or restraint, but that the victim actually be confined
or restrained. In addition, since even ordinary stalking
No. 12-1860 9
(and thus also the aggravated version) requires that
the person act “knowingly and without lawful justifica-
tion,” 720 ILCS 5/12-7.3(a), we are satisfied that this is
a crime with a mens rea of knowing or purposeful con-
duct. This requires it to be treated in the same way as the
unlawful restraint and false imprisonment offenses in
Wallace and Billups. See also Sykes, 131 S. Ct. at 2276.
Because the crime of aggravated stalking requires
confinement or restraint of the victim, we conclude that
it presents a serious potential risk of physical injury,
just like the crimes of unlawful restraint, false impris-
onment, and those enumerated in Section 924(e)(2)(B)(ii).
Our holding is consistent with that of the Fourth Circuit
in United States v. Seay, 553 F.3d 732, 738 (4th Cir.
2009) (“North Carolina’s felony stalking statute . . . in-
volves conduct that presents a serious potential risk
of physical injury to another.”).
III
The ACCA drastically increases punishment for those
deemed armed career criminals. A 15-year mandatory
minimum is no trifling matter, and we have therefore
taken care in these cases “[t]o avoid collapsing the dis-
tinction between violent and non-violent offenses.” Flores
v. Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003). We also
have attempted, as the statute commands, to reserve
this designation for offenses in which the risk of
physical harm is serious, even if not always realized. We
conclude that Illinois’s crime of aggravated stalking
10 No. 12-1860
meets this demanding test. We therefore A FFIRM the
judgment of the district court.
4-8-13